Norfolk Southern Railway Corp. must pay $1.1 million to three workers in Pennsylvania and Indiana who were fired after reporting workplace injuries, the Occupational Safety and Health Administration (OSHA) announced Feb. 28, 2013.
Two OSHA investigations revealed that the firings violated whistle-blower protections under the Federal Railroad Safety Act (FRSA), and the agency has ordered the freight railroad operator to expunge the disciplinary records of the three whistle-blowers, post a notice regarding employees’ whistle-blower protection rights under the act and train workers on these rights.
Railroad carriers are subject to the FRSA, which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security.
OSHA said the latest results “follow several other orders issued by OSHA against Norfolk Southern Railway Co. in the past two years. OSHA’s investigations have found that the company continues to retaliate against employees for reporting work-related injuries, and these actions have effectively created a chilling effect in the railroad industry.”
One investigation involved a crane operator based in Fort Wayne, Ind., who was removed from service after reporting an eye injury requiring the extraction of a sliver of metal from his eye. The injury occurred while he was operating a crane in support of a bridge-building operation in Albany, Ind. The employee was taken out of service and his employment was formally terminated on Aug. 24, 2010, after an internal investigation determined he had made false statements concerning the injury.
OSHA’s investigation concluded that the worker would not have been terminated if he had not reported the injury. The agency has ordered the railroad to pay him $437,592 in damages, which includes $100,000 in compensatory damages for pain and suffering, $175,000 in punitive damages, and $156,519 in back wages and benefits. It also includes compensation of $6,073 to the crane operator for penalties incurred when he had to cash in savings bonds prior to their maturity date after being terminated. In addition to damages, the company has been ordered to pay reasonable attorney fees. Further, OSHA has ordered the railroad to reinstate the worker to the proper seniority level, with vacation and sick days that he would otherwise have earned.
OSHA’s second investigation involved a thermite welder and a welder’s assistant based in western Pennsylvania. Both employees had worked at the railroad for more than 36 years without incident when they reported injuries sustained as a result of an accident caused by another vehicle that ran a red light and hit a second vehicle, which in turn collided with the company truck in which they were riding.
The employees initially reported minor shoulder pain plus some stiffness and soreness. Later, when questioned by management, they initially declined medical treatment, but as the pain increased, sought and received treatment at a local hospital. They were then taken out of service pending an investigative hearing and their employment was formally terminated. Management concluded that the employees’ reports about their condition were false and conflicting and constituted misconduct.
OSHA’s investigation found that the employees were terminated for reporting injuries to management. The agency has ordered the railroad to pay them $683,508 in damages, including $300,000 in punitive damages; $233,508 in lost wages, benefits and out-of-pocket costs; and $150,000 in compensatory damages for pain and suffering. Interest on back pay due will accrue daily until the employees are paid, OSHA said. In addition to damages, the company has been ordered to pay reasonable attorney fees.
Norfolk Southern can file an appeal within 30 days of receipt of the findings.
In a news statement, Norfolk Southern criticized OSHA’s ruling as “the result of a flawed, one-sided procedure in which the railroad was not permitted to question the employees under oath or cross-examine witnesses.”
The company will appeal the ruling and continue to seek a settlement with the former workers.
Railroad Complaints Nearly Surpass All Others
On July 16, 2012, OSHA and the U.S. Department of Transportation’s Federal Railroad Administration signed a memorandum of agreement to facilitate coordination and cooperation for enforcing the FRSA’s whistle-blower provisions. Between August 2007, when OSHA was assigned responsibility for whistle-blower complaints under the act, and September 2012, OSHA received more than 1,200 railroad whistle-blower complaints. The number of whistle-blower complaints that OSHA currently receives under the FRSA surpasses the number it receives under any of the other 21 whistle-blower protection statutes it enforces except for the anti-retaliation statute under the Occupational Safety and Health Act. More than 60 percent of the FRSA’s complaints filed with OSHA involve an allegation that a railroad worker has been retaliated against for reporting an on-the-job injury, according to the agency.
Roy Maurer is an online editor/manager for SHRM.
Follow him on Twitter @SHRMRoy.
Whistle-Blower Rule Changes Follow Record Cases in 2012, SHRM Online Safety & Security, February 2013
BNSF Railway Reaches Whistle-Blower Accord with OSHA, SHRM Online Safety & Security, January 2013
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